JOHN PORZIO, APPELLANT,
v.
DOREEN LEA PORZIO, APPELLEE

Fla. 5th DCA | 2000-06-23
No. 5D99-2844
SAWAYA, J., concurs., ORFINGER, M., Senior Judge, concurs in result only.
760 So. 2d 1075 Florida District Court of Appeal, Fifth District (2000) Caution
Cited by 11 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

John Porzio appeals a divorce judgment dissolving his 17-year marriage to Doreen Porzio. The appellate court affirmed most of the judgment but reversed and remanded portions relating to child medical insurance, lump sum alimony, attorney fees, and asset distribution due to insufficient findings of fact by the trial court.


Holding

The court affirmed the income imputation and custody/visitation awards but reversed: (1) the requirement that John maintain major medical insurance absent a finding of reasonable availability; (2) the lump sum alimony award for lack of findings supporting unusual circumstances; (3) the attorney fee award absent findings on reasonable hours and hourly rates; and (4) the potentially unequal asset distribution absent findings explaining why the result was fair and reasonable. The matter was remanded for the trial court to reconsider and make appropriate findings.


Headnotes

[1] A trial court's imputation of income must be based on specific record evidence and express findings of fact.

[2] A requirement for a party to maintain medical insurance for a child must be supported by a finding that such insurance is reasonably available.

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Key Quotes

“an award of lump sum alimony for support should not be made unless unusual circumstances exist that make the award reasonable”

Establishes the legal standard requiring special findings and unusual circumstances to justify lump sum alimony awards, not mere periodic alimony findings.

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Facts & Procedural History

The parties were married in 1982 and divorced in 1999, a 17-year marriage with one child born in 1991. John is a self-employed tile setter with gross …

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Opinion of the Court
W. SHARP, J.

John Porzio appeals from a final judgment which dissolved his marriage to his former wife, Doreen Porzio. He argues numerous points on appeal, some of which are conceded as error by appellee, and some of which appear to be errors of law due to lack of findings by the trial court. Accordingly we affirm in part, reverse in part, and remand to the trial court for further proceedings.

One of the difficulties in this case is the lack of a trial transcript, due to the absence of a court reporter. Thus we are unable to undertake the normal appellate review of whether there was sufficient competent evidence to support the trial court’s findings, and the further narrower determination of whether the trial court abused its discretion in resolving the family law issues the way it did.1

The documents in the record on appeal and the findings which the trial court did make, establish the following facts and circumstances. The parties were married in 1982, and ultimately filed for divorce in 1999 — a seventeen-year marriage. They have one child, who was born in 1991. John is a self-employed tile setter who (based on his financial affidavit filed in the record) has a gross monthly income of $2,120.00 and a net monthly income of $1,871.00. John was injured in October 1998, but the court deemed it to be temporary in nature. Doreen was a homemaker and during the marriage was not gainfully employed. She is able to work part time, earning menial wages sufficient to impute to her gross monthly earnings of $591.25, netting her $478.00 per month.

The parties accumulated a “certain amount of assets, free of any encum brances” during their marriage. In addition, the parties had various vehicles, a boat, trailer, and household furniture worth $15,000.00, and IRAs in financial institutions totaling $9,000.00. However, the court said rather critically that it had “concerns regarding the accuracy and reliability of the testimony of the parities relative to their reported income and assets.”

The final judgment awarded primary residential custody of the parties’ child to Doreen, and established a visitation schedule (fairly standard) for John. It required John to pay child support of $400.00 per month, based on a guidelines worksheet, and it required him to maintain major medical insurance for the child. It required John to deed to Doreen his interest in the marital home as lump sum alimony, and denied her any other form of alimony. It also divided the parties’ personal and intangible property almost equally, with both receiving items with an approximate value of $12,000.00. And, it awarded Doreen $2,750.00 towards her attorney fees (one-half of her billed fee amount).

On appeal, John argues the court erred in imputing income to him, without making express findings of fact as to the amount and source of the income. It is clear, however, that the imputation was based on specific record evidence. See Warner v. Warner, 692 So. 2d 266 (Fla. 5th DCA 1997). The court relied on John’s own financial affidavit in the record and the testimony it heard at trial. It rejected John’s position that his injury had diminished his income-earning ability. These are factual matters. Without a transcript of the trial, John cannot establish error. Doreen concedes on appeal that the trial court erred in requiring John to maintain major medical insurance coverage for the parties’ child, without making a finding that such insurance was reasonably available to him. See Calderon v. Calderon, 730 So. 2d 400 (Fla. 5th DCA 1999). This provision in the judgment is reversed and on remand, if the court reimposes this requirement, the necessary finding should be made.

John argues that the award of lump sum alimony to Doreen of his equity in the marital home was erroneous, because the court made no special findings to justify the award. The findings made by the court, in its judgment with regard for alimony, are probably sufficient to justify some kind of periodic alimony. See, e.g., Defazio v. Defazio, 572 So. 2d 955 (Fla. 5th DCA 1990). However, an award of lump sum alimony for support should not be made unless unusual circumstances exist that make the award reasonable. Glazner v. Glazner, 693 So. 2d 650 (Fla. 5th DCA 1997); Young v. Young, 677 So. 2d 1301 (Fla. 5th DCA 1996). The nature of this award should be re-addressed by the court on remand, and if the court determines alimony awarded in this form is advisable under the circumstances of this case, it should make findings of fact to explain its reasoning. Accordingly, we reverse the lump sum alimony award.

Doreen concedes on appeal that the award of attorney fees should also be readdressed by the trial court on remand. The judgment fails to state findings as to the reasonable number of hours expended by counsel and the reasonable hourly rate. See Abernethy v. Fishkin, 638 So. 2d 160 (Fla. 5th DCA 1994). Accordingly, we reverse the attorney fee award. On remand, these findings should be made in order to buttress any award of attorney fees made to Doreen.

John also contends that the trial court abused its discretion in making an unequal distribution of marital assets. It appears on the face of the record that the trial court did award Doreen a much larger share of the parties’ marital assets. Although it divided the parties’ personal and intangible assets roughly in half, it allowed Doreen to keep her one-half of the marital residence valued at $55,000.00, without making a compensating award to John. An equal division of marital assets is presumptively proper under section 61.075 and thus an unequal distribution must be justified by findings made by the court.2

However, this part of the judgment could be viewed as the court having split the marital residence equally between the parties, but then having used John’s share to make up the lump sum alimony award. In any event, whether the trial court views this as an unequal distribution of marital assets or an equal division and then a lump sum alimony award, it must make findings to explain why the result is fair and reasonable under the circumstances of this case. See Calderon; Bringedahl v. Bringedahl, 712 So. 2d 1205 (Fla. 5th DCA 1998). As indicated above, we reverse this portion of the judgment and remand for reconsideration and the making of findings.

We affirm the balance of the judgment and remand for the trial court to reconsider and make findings, as set out in this opinion. In the event the trial court is unable to make such findings because it is unable to recall the facts proved at trial, it may in its discretion and at its option, take additional testimony on the issues and points it deems necessary.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

SAWAYA, J., concurs.

ORFINGER, M., Senior Judge, concurs in result only.

. It is the role of the finder of fact to resolve conflicts in the evidence and to weigh the credibility of witnesses. Thus the appellate court must affirm if there is sufficient competent evidence to support the trial court’s finding. Love PGI Partners, LP v. Schultz, 706 So. 2d 887 (Fla. 5th DCA 1998), approved by Schultz v. Love PGI Partners, LP, 731 So. 2d 1270 (Fla. 1999); Ferry v. Abrams, 679 So. 2d 80 (Fla. 5th DCA 1996). In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of a trial judge and should apply the "reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Kennedy v. Kennedy, 622 So. 2d 1033, 1045 (Fla. 5th DCA 1993) (Sharp, W., J., dissenting); Muphy v. Murphy, 475 So. 2d 1253 (Fla. 5th DCA 1985).

. Escudero v. Escudero, 739 So. 2d 688 (Fla. 5th DCA 1999); Herrera v. Herrera, 673 So. 2d 143 (Fla. 5th DCA 1996).


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Cited By (11 total)

  • Mondello v. Torres, 47 So. 3d 389 (Fla. 4th DCA 2010)
    …ists. Nichols v. Nichols, 907 So. 2d 620, 622 (Fla. 4th DCA 2005) (citation omitted). To award lump sum alimony, the trial court must find 'a “special necessity.” Rosario v. Rosario, 945 So. 2d 629, 632 (Fla. 4th DCA 2006) (citing Porzio v. Porzio, 760 So. 2d 1075, 1077 (Fla. 5th DCA 2000); Glazner v. Glazner, 693 So. 2d 650, 652 (Fla. 5th DCA 1997); Simpson v. Simpson, 372 So. 2d 526, 527 (Fla. 4th DCA 1979)). “If support is needed, there must exist unusual circumstances which would require a non-modifiable…
  • Vernell Holden v. State, 877 So. 2d 800 (Fla. 5th DCA 2004)
    …the role of the trial court is to weigh the credibility of witnesses and to resolve ev-identiary conflicts, and on truly discretionary matters, the appellate court must recognize the trial court’s “superior van [*802] tage point.” Porzio v. Porzio, 760 So. 2d 1075, 1076 n. 1 (Fla. 5th DCA 2000). Here, the trial court determined that the officers’ testimony was more credible than Holden’s testimony. This finding is supported by the evidence. There was testimony that the occupants voluntarily exited the car wh…
  • Rosario v. Rosario, 945 So. 2d 629 (Fla. 4th DCA 2006)
    …between the parties, including adultery. Id. However, two predicates have evolved for the award of lump-sum alimony. The first of these is that the trial court must find some special necessity for lump-sum payment of alimony. See Porzio v. Porzio, 760 So. 2d 1075, 1077 (Fla. 5th DCA 2000); Glazner v. Glazner, 693 So. 2d 650, 652 (Fla. 5th DCA 1997); Simpson v. Simpson, 372 So. 2d 526, 527 (Fla. 4th DCA 1979). If support is needed, there must exist unusual circumstances which would require a non-modifiable aw…

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